Bladow v. Apfel, 99-1470

• Citation: 205 F.3d 356
• Decision Date: 16 November 1999
• Docket Number: No. 99-1470,99-1470
• Parties: (8th Cir. 2000) Tony L. Bladow, Plaintiff-Appellant, v. Kenneth S. Apfel, Commissioner of the Social Security Administration, Defendant-Appellee. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 356

205 F.3d 356 (8th Cir. 2000)

Tony L. Bladow, Plaintiff-Appellant, v. Kenneth S. Apfel, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 99-1470

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: November 16, 1999

Decided: February 29, 2000

Appeal from the United States District Court for the District of North Dakota.

Before WOLLMAN, Chief Judge, LAY and BOWMAN, Circuit Judges.

I. Introduction

LAY, Circuit Judge.

Tony L. Bladow (Bladow) appeals an administrative law judge's (ALJ's) denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433.¹ In view of the intervening case of Kelley v. Apfel, 185 F.3d 1211 (11th Cir. 1999) (per curiam), we remand.

Bladow seeks disability benefits for a back condition that he claims prevents him from engaging in any substantial gainful activity. He complains of constant radiating pain from his right hip to ankle and occasional weakness in the right arm. The alleged onset date of this condition is March 15, 1992.

After being denied benefits initially and on reconsideration, Bladow sought an administrative hearing. Among the evidence presented to the ALJ was a Functional Capacities Evaluation (FCE) administered by an occupational therapist on October 11 and 12, 1994. The FCE tested factors such as muscle strength, body coordination, endurance, and range of body motion. The therapist concluded that Bladow could perform medium level work² if given a more diminished schedule such as two hours a day with a gradual increase to four. The therapist further stated, however, that Bladow "may tolerate the four-hour work day and gradually increase his work hours" if returned to a light level position.³

The Commissioner introduced the testimony of a Vocational Expert (VE) to show that other work existed that Bladow was capable of performing. The ALJ asked the VE whether an individual with Bladow's age, education, work experience, and FCE could perform his past relevant work. Bladow's past relevant work primarily involved performing jobs requiring manual labor.⁴ He responded that such an individual could not perform Bladow's past work because he read the FCE as limiting Bladow's work schedule to four hours a day even in a light level position. The ALJ later asked whether other work exists in the national or regional economy that such a person could perform if limited to six hours a day. The VE responded that such a person could work as a bench assembler, sorter, or telemarketer, and well over 100,000 of each of these jobs exist nationally and approximately 5,000 exist regionally. The VE later admitted on cross-examination by the claimant's counsel that less than half of these jobs were available on a part-time basis. Later, the ALJ asked the VE whether light level jobs would be available to an individual with Bladow's FCE who could work eight hours a day. The VE replied in the affirmative. The ALJ then asked "[a]nd if we were limited to a six hour day - would that again limit the numbers?" Again, the VE responded in the affirmative.

Based on the testimony of the VE, the ALJ upheld the denial, finding Bladow failed the fifth step of the disability inquiry under 20 C.F.R. § 404.1520 (1999).⁵ The ALJ felt the Commissioner had satisfied its burden at step five by presenting the testimony of the VE, upon which the ALJ substantially relied. The Appeals Council upheld the denial of benefits. Bladow appealed to the District Court of North Dakota, and both parties moved for summary judgment. The district court adopted the magistrate judge's recommendation and granted the Commissioner's motion for summary judgment. Bladow now appeals the district court's ruling.

II. Discussion

Bladow argues that the ALJ improperly found him not disabled based on his ability to perform other work part-time. Bladow feels such a finding is in violation of the Commissioner's position in Kelley, 185 F.3d at 1213-15, which was handed down between the district court's order and the submission of this appeal. In that case, the Commissioner explained that, at step five of the disability determination, "only an ability [on the part of the claimant] to do full-time work will permit the ALJ to render a decision of not disabled." Id. at 1214. See also Matz v. Sisters of Providence in Oregon, No. Civ. 98-1598-JO (D.Or. Dec. 8, 1999). The Commissioner based this policy interpretation on Social Security Ruling (SSR) 96-8p, which provides that "RFC [residual functional capacity] is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule."⁶ SSR 96-8p, 1996 WL 374184, at *1 (Social Security Administration, July 2, 1996) (emphasis added).

At oral argument in this case, the Commissioner conceded that the interpretation offered in Kelley is the official policy on determining RFC at step five. Nonetheless, the Commissioner argues that Kelley and SSR 96-8p do not mandate an award of disability benefits in this case. First, the Commissioner interprets the ALJ's finding that Bladow is not disabled as based on Bladow's ability to perform other work full-time. Secondly, even if the ALJ did find Bladow limited to part-time work, the government avers that limitation was a function of Bladow's deconditioning and, as such, should not be taken into consideration when determining Bladow's residual functional capacity. SSR 96-8p states that "[a]ge and body habitus (i.e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the individual's medically determinable impairment(s) and related symptoms) are not factors in assessing RFC in initial claims." SSR 96-8p, 1996 WL 374184, at *2. Hence, the Commissioner opines the ALJ should have ignored Bladow's part-time limitations (allegedly due to deconditioning) when determining his RFC.

In order to evaluate the Commissioner's arguments we must review the language of the ALJ's decision. The ALJ rejected the argument that the FCE reflects Bladow's inability to work at any level for more than four hours a day. In the realm of light work, which the ALJ found Bladow could perform, the ALJ stated the FCE "impl[ies] the claimant is able to work more than four hours . . . ." More importantly, the ALJ explained in Finding Number 12:

Although the claimant's limitations do not allow him to perform the full range of light work, . . . there are a significant number of jobs in the national economy which [he] could perform. Examples of such jobs are: telemarketer, jobs in assembly, and sorter. A vocational expert testified these jobs exist in significant numbers in the national and regional economies and would only be reduced by half if the claimant was limited to working 6 hours a day.

(emphasis added). Thus, while the ALJ rejected the contention that Bladow was unable to work more than four hours a day, the ALJ did not specifically find he was able to work full-time, either.

This court feels the best and most prudent option in this case is to remand for clarification of Bladow's RFC in light of Kelley and its treatment of SSR 96-8p. We read Finding Number 12 to be written in the alternative: if Bladow can perform full-time light level work, there are a significant number of jobs available to him in the national and regional economy; and if he can only work in a light level position part-time, the number of jobs available is only reduced by half. This language does not give us a sufficient basis to decide the issue raised in Kelley regarding part-time work and step five of the disability analysis. Thus, the sensible solution is to remand for clarification of Bladow's RFC in light of Kelley.

Before we remand, however, we address the government's body habitus argument. If the six-hour limitation is due solely to Bladow's body habitus, there is no reason to remand the case. Our analysis would then focus on whether the finding of no disability is supported by substantial evidence in the record as a whole. Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).

The Commissioner relies largely on the language of the FCE in making its body habitus argument. The FCE forges a link of uncertain strength between Bladow's limited work hours and his "general deconditioning," stating that:

[Bladow] would do best with a return to work of more diminished hours such as two hours and gradually increase to a four-hour position. This is due to his decreased general conditioning and decreased functional endurance with activities. If [Bladow] is returned to a light level position, he may tolerate the four-hour work day and gradually increase his work hours.

The FCE also suggests that Bladow engage in a general conditioning home program. The occupational therapist specifically noted in the FCE that Bladow did not have a specific home program of exercises at the time of testing. Both the ALJ and the magistrate took notice...